The Inapplicability of Rights Analysis in Post-Divorce Child Custody Decision Making

Abstract

It is well understood that in custody battles passions become inflamed and children often become victims of their parents' irrational, selfish behaviour. Within the court system, various concepts have been developed in an attempt to combat this and to achieve custody arrangements that are in the best interests of the children. Munro explores these concepts and reveals that all too often the best interests of the children are sacrificed for the rights of the parents. Indeed, the Charter of Rights and Freedoms has added strength to parental rights arguments within custody battles. Munro challenges those who believe that rights analysis should be used to create equality between parents seeking the custody of their children. She explores the various myths about the differences between men and women as caregivers and concludes that, on a general level, men are biologically capable of being the caregiving parent but refuse to actively take on the role. Ultimately, Munro suggests that the appropriate test to use to determine who should have custody is the Primary Caregiver Test. This test is based on the presumption that the parent who was the primary caregiver during the marriage will he the better caregiver after the marriage and, thus, should be awarded custody of the children. The Primary Caregiver Test, Munro argues, is not only more effective, less time consuming and less costly than other tests, but also acts to preserve the concept of the best interests of the children which must be the pinnacle consideration in all custody disputes.